Montana v. Egelhoff

PETITIONER:Montana
RESPONDENT:Egelhoff
LOCATION:Rhode Island General Assembly

DOCKET NO.: 95-566
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: Montana Supreme Court

CITATION: 518 US 37 (1996)
ARGUED: Mar 20, 1996
DECIDED: Jun 13, 1996

ADVOCATES:
Ann Celestine German – Argued the cause for the respondent
Joseph P. Mazurek – Argued the cause for the petitioner
Miguel A. Estrada – Argued the cause for the United States, as amicus curiae, supporting the petitioner

Facts of the case

James Allen Egelhoff was tried in Montana courts for two counts of homicide. Egelhoff claimed that extreme intoxication rendered him physically incapable of committing or recalling the crimes. Montana law did not allow Egelhoff’s intoxicated condition to be considered. Subsequently, Egelhoff was found guilty. The Supreme Court of Montana reversed the decision. It held Egelhoff had a due process right to present all relevant evidence. Moreover, it held that Montana law’s denial of such a presentation relieved the state from part of its burden of proof needed to convict Egelhoff.

Question

May a state restrict the elements of a defense in criminal prosecution, consistent with the Fourteenth Amendment Due Process Clause?

Well, is–

Ann Celestine German:

We’re not allowing the word, exculpate, excuse, defend… we’re not allowing an intoxicated defendant to come in and say, I am not criminally responsible, that we might say, for instance, to somebody who has some other infirmity.

Miguel A. Estrada:

–to have changed their view.

Ann Celestine German:

All we’re saying is that, as this Court has held in other cases, with respect to the proof of this mental state, I want to be able to say to the jury, you’ve got to consider whether or not I in fact was aware, given my level of intoxication, and if… and if this Court’s rules or precedent on proof beyond a reasonable doubt of all essential elements is to be applied to this case, it seems to me the Montana supreme court’s interpretation of their statute in the application of these rules, these precedents has to be affirmed.

–Is… do you think that position that in fact there is a change in the meaning of purpose and knowing, and so on?

Ann Celestine German:

If you want to go further–

Is that consistent with what the State court found or construed?

I don’t understand, really, the distinction between the affirmative defense–

Miguel A. Estrada:

Yes, Justice Souter, and the reason is this.

Ann Celestine German:

–Okay.

Miguel A. Estrada:

The thing that the State court did wrong in the first place was to use Winship and that line of cases as the first step in the analysis, rather than the last step of the analysis.

–and, I can disprove intent by showing I was dead drunk.

Miguel A. Estrada:

In the usual case we give to the States the power to determine what are the elements of criminal responsibility, and based on the elements as they fashion them, then hold them to the reasonable doubt standard.

Are you… you say that those two are discrete, and maybe in the abstract I can think of them that way, but in concrete I can’t, if you’re using the drunkenness to show he could not have formed the mental intent necessary to be deliberate.

Miguel A. Estrada:

Here, the State court never really got to the question of whether there has been a change in the State law, because it simply jumped to the conclusion that, to the extent that there had been one, it was barred by Winship.

Ann Celestine German:

Okay, Justice Ginsburg, I’ll give you an example of the practical effect.

Miguel A. Estrada:

In our view that was, in a sense, putting the cart before the horse, because it was using a test from these case… from this Court’s cases that is directed at the last step of the analysis as the first step, and what it should have done to start with the analysis rightly was to recognize that the proper test was whether this change in the substantive conception of criminal liability was consistent with the history and tradition of our people, which is–

Ann Celestine German:

When you’re trying a case, in a criminal case to the jury, the state has the burden of proof to uphold with the evidence, and in Martin v. Ohio I think in fact this language was used, that the State survives the motion to acquit at the end of the State’s case.

Well, do you say that the State no longer in Montana has to prove knowing and purposely killing?

Ann Celestine German:

All that time what you’re doing, the State has the burden to prove the elements beyond a reasonable doubt.

Miguel A. Estrada:

–Yes, they do, but what they do is that they have a conception of knowledge and purpose from which the effects of voluntary intoxication have been extracted, which is not all that different from how the common law dealt with the concept of malice aforethought.

Ann Celestine German:

The defense is constantly raising doubts, constantly trying to raise reasonable doubt, constantly, with respect to every piece of evidence that comes in.

Miguel A. Estrada:

One could equally well have said that at common law being completely intoxicated was as relevant in a logical sense to whether one could form malice aforethought.

Ann Celestine German:

At the end of the State’s case, the defendant sits down and said, I have no evidence to present.

Can you tell me, Mr. Estrada, has… what… has the State here said in effect that this knowledge and purpose is usually present in the intoxicated person, and the jury can usually find it despite the fact of the intoxication, or has it said that we don’t care about conscious purpose if the person is intoxicated?

Ann Celestine German:

The burden’s on the State, it’s got to find beyond a reasonable doubt.

It’s not clear to me the logical and the common sense basis for the common law rule that you’re proposing.

Ann Celestine German:

I don’t have any burden.

Miguel A. Estrada:

Well, let me indicate two possible points.

Ann Celestine German:

I’m sitting here waiting for a verdict.

Miguel A. Estrada:

The first point is that evidence of intoxication really goes not so much to intent but to capacity to form intent and, in that sense, it is a sort of evidence that is not about the defendant himself but about hypothetical third party.

Ann Celestine German:

In that case, all you’ve done, really, is negate the mental state.

Miguel A. Estrada:

It says, in effect, given certain medical data most people would do X.

Ann Celestine German:

That’s all you’ve really done, is tried to negate the mental state.

Miguel A. Estrada:

It doesn’t really say anything about the specific person, other than by inference that he may be in the norm.

Ann Celestine German:

If, however, they prove the awareness, then the burden very permissibly, according to this Court’s cases, can shift to the defendant to come forward and try to prove an affirmative defense why the State’s proof of the case up to that point, beyond a reasonable doubt, ought not to result in a guilty verdict, and that’s how the affirmative defense comes in.

Miguel A. Estrada:

The second point is that a legislature could reasonably conclude that the effects of voluntary intoxication are not relevant to the law’s conception of intent, in the sense that in the ordinary case the effect is to remove inhibitions.

Isn’t in this case… I would have thought that a State might have a law which says, if you do this with purpose or knowledge, you’re guilty of first degree murder, but if you do it with purpose and knowledge and are voluntarily intoxicated at the time to a serious degree, you’re guilty of second degree murder.

Miguel A. Estrada:

It doesn’t keep people from being able to think and choose, and to say that you’re going to explain, in a way, how intoxication made it difficult to invoke behavioral controls or to grasp how grave the conduct was is one way of saying why the intent was there but not really saying that it wasn’t.

Ann Celestine German:

Yes.

Miguel A. Estrada:

In a way–

It would then be an excuse, a defense.

Is that a fair answer to Justice… isn’t the question whether you can determine whether the intent was there or not, not why, or… and is it not true that if a person… if the defendant got on the stand and said I thought I was shooting at a pink elephant, or, to take Justice Scalia’s example, if he’s not able to say he was totally intoxicated at the time, no one would ever believe him.

You’re saying that’s not what’s at issue here.

Miguel A. Estrada:

–Well, he can use the intoxication to explain his current inability to have a complete memory.

Montana could do that, probably, but that’s not what’s at issue here.

Miguel A. Estrada:

What he is not allowed to do is to tell the jury that because most people who have had a similar number of drinks would have been intoxicated and impaired, that his own intent was lacking.

What’s at issue here is how you prove an element.

Miguel A. Estrada:

Now, let me hasten to say that that doesn’t mean that the State gets to prove that he is guilty of the crime merely because he was drunk.

All right, so how do you… have you run across any authority anywhere which… this is where I’m having trouble again.

Miguel A. Estrada:

There may be cases, as one was given from the bench, where the person has completely passed out and he is incapable of committing the act.

Suppose Congress passed a law which said, robbery of a federally insured bank is a crime.

Miguel A. Estrada:

At the same time, in a case like this the State can point to evidence in the record to show that this one person, notwithstanding anything that might have flown under another rule of law from his intoxication, was capable of knowing, of knowledge and purpose, and the examples that–

They might also pass a law which said, robbery of any bank in commerce is a crime.

And he can also show that he didn’t have the intent by means other than invoking the drunkenness.

Suppose they pass the first and say, but you’re not allowed to deny that it’s a federally insured bank.

He can show from witnesses that this person didn’t seem to know what he was talking about.

Are those two statutes the equivalent?

Miguel A. Estrada:

–Oh, but of course.

Is there any authority… I’m not asking you to think of the answer to that right now.

All right.

I just want to know if it triggers any bell in what you’ve looked up and that makes any difference at all whether they do it the one way rather than the other.

Miguel A. Estrada:

He could have–

It’s somewhat misleading the first way.

He could do that.

People might not know what they’ve done.

Miguel A. Estrada:

–Absolutely.

It could create irrational distinctions the first way.

Even though that was the effect of the drunkenness.

Does it ring any bell?

Miguel A. Estrada:

Absolutely.

No.

Miguel A. Estrada:

let me give you two examples.

Ann Celestine German:

Well, it creates irrational distinctions, and I hate to keep coming back to this, but what it seems to me this Court’s inquiry has to be is not… this Court is not for the first time approaching the question of the constitutionality of this statute.

Miguel A. Estrada:

You could have someone who is shown in a videotape walking out of a bar, and he is completely drunk, and he is shooting wildly in the air.

Ann Celestine German:

The Montana supreme court has interpreted the statute, and its interpretation ends, these are the elements, this evidence is relevant, therefore under Winship and Sandstrom and Martin and Chambers and the other precedents we’ve cited the defendant’s entitled to have that evidence considered by the jury.

Miguel A. Estrada:

He has no conception of exercising choice about what he is doing, and in that sort of a case the State would have a very tough time showing that he was capable of knowledge and purpose.

Ann Celestine German:

So it gets down to a question of the Montana supreme court’s interpretation of its own State law.

Miguel A. Estrada:

You have the same person who you happen to know has ingested the same amount of alcohol in another videotape, and he is taking aim at you, and he is shooting and cocking his eye and saying something like, I got you now, and he hits you in the middle of the forehead.

Ms. German, do I take it that this is not… your argument is not special to homicide.

Miguel A. Estrada:

You could infer from that, apart from knowing anything about intoxication, that he was capable of exercising aim, judgment, and that he had some knowledge of good and evil.

It would be any intentional–

But in your first case you would not allow a doctor to testify as to the blood level, blood alcohol content.

Ann Celestine German:

Yes.

Miguel A. Estrada:

No, I would not allow it under this law as to either of those two cases.

Ann Celestine German:

I wanted to point something–

Miguel A. Estrada:

I would say that the evidence of the mental state should be inferred from the circumstances of the conduct, and that the–

–May I just ask you a particular question that occurred to me, and I may be totally off-track.

But you say you only get those circumstances if you happen to have a videotape.

Suppose there’s an aggravated assault, assault with intent to commit grave bodily harm, and the defendant, who happens to be the spouse of the victim, has beaten her to a bloody pulp, but he says, I was… I do this when I’m drunk.

Miguel A. Estrada:

–Well, no.

And so you have two cases, one with someone who does it when he’s drunk, the other who’s cold sober.

Miguel A. Estrada:

Let me paint another picture for you here–

Can the State say, we’re not going to treat those two differently, or must the batterer who does it when he’s drunk be able to say to the jury, I was drunk, so that should be mitigating?

In most cases that doesn’t happen.

Ann Celestine German:

–The batterer can say that.

Miguel A. Estrada:

–Justice Stevens.

Ann Celestine German:

The jury isn’t going to accept it, and that’s the nub of this case.

Miguel A. Estrada:

Based on the evidence in this case, let me highlight to you four facts that I think are fairly significant.

Ann Celestine German:

This hasn’t to do with directed–

Miguel A. Estrada:

The first one is that earlier in the day he had put the gun and the holster in the glove compartment, and that therefore he had to take it out of there, which indicates some exercise of design.

But it says that the intent, I have to show intent to… and says, I didn’t want to hurt her at all.

Are you making a harmless error argument?

It’s just that I go crazy when I get drunk.

Miguel A. Estrada:

No, I am… I am explaining to you how, in an ordinary case, you can have a very compelling case of intent and judgment.

Ann Celestine German:

–And if I were a prosecutor I would argue that to the jury.

I’ve one question which I say, in many cases this will work out fine, but some it might not.

Ann Celestine German:

I would say, this man knew that when he got drunk he commits violent acts, so in fact he is culpable of the… you can’t say that he didn’t intend to do what he was doing.

I take it if you wilfully, intentionally get blind drunk, and you run into a pedestrian in a sidewalk going 5 miles an hour and kill him at 4:00 in the morning, you’ll probably be found guilty of first degree murder.

Ann Celestine German:

Because what you’re really doing in a… when you’re asking a jury to find a mental state, you’re asking them to go in the jury room and consider all of the evidence and determine whether or not they think the person know what–

If you get similarly, absolutely blind drunk, and you drive at 95 miles an hour, in the middle… you drive 95 miles an hour and run into somebody because you’re going too fast, you won’t get convicted, right, because there’s no purpose, there’s no knowledge.

Can a State say in Justice Ginsburg’s second hypothesis, you may not introduce evidence of drunkenness?

In the one case… and I don’t understand how any State could make such a distinction.

Ann Celestine German:

–If… if the element of the offense… the Montana supreme court’s opinion in this case is that if the elements of the offense make that evidence relevant, then you have to allow it.

It seems irrational.

Ann Celestine German:

I think that has to be determined on a case-by-case basis.

You see, what you’re doing is, you’re saying that they can’t use it to rebut knowledge or intent, so it only comes in in a case where there’s likely to be purpose and knowledge in the first place.

Ann Celestine German:

It may well be–

Miguel A. Estrada:

I’m not saying that, Justice Breyer.

Well–

Do you see–

Ann Celestine German:

–that the mental state for aggravated assault would not make it relevant.

Miguel A. Estrada:

What I’m saying–

Ann Celestine German:

In homicide, deliberate homicide, the Montana supreme court–

–Do you see… I know we’re out of time, or we’re late, so if you can’t follow it I’ll–

–Suppose you have to intentionally and purposefully assault… act with an intent and a conscious purpose to injure the victim?

Miguel A. Estrada:

–What I’m saying is that it is within their domain to define who is morally culpable, and–

Ann Celestine German:

–There’s a… the mental state requirement is purposefully or knowingly.

–What rational basis could there be for convicting a blind drunk person of first degree murder under circumstances where knowledge and failure to say, I’m drunk, leads the jury to conclude you knew what you were doing, and that exact same thing happening in circumstances where it doesn’t?

Ann Celestine German:

Knowingly is, as I say, a very low standard.

Miguel A. Estrada:

–I understand–

Ann Celestine German:

All you have to show is awareness, the fact that the person was aware of what he was doing.

Yes.

Isn’t the drunkenness, showing drunkenness just showing a prior… just showing prior behavior?

Miguel A. Estrada:

–the question, and the answer is the same rational basis as allows a guilty person to go free whenever the State cannot muster the evidence, even though he’s equally guilty as the person who goes to jail, and the fact is that many days the State cannot muster the evidence to show that somebody is guilty when, in fact, he is and he goes free, and that is not rational at some level, but that’s not a general impeachment of our criminal laws.

If you can show that the person didn’t know what he was doing, whatever the reason, drunkenness or not, you get off.

Thank you, Mr. Estrada.

Drunkenness is simply, you prove that the person drank three bottles sometime ago, and excluding that evidence of prior conduct, I don’t see why that’s any different from rape shield laws which exist in many States, where, you know, in a rape case the defendant is not… not able to introduce evidence that the alleged victim was sexually promiscuous.

Ms. German, we’ll hear from you.

Ann Celestine German:

The evidence–

Is it German?

They just say, we’re not going to allow that in.

Ann Celestine German:

German.

–The evidence that–

William H. Rehnquist:

We’ll hear argument now in Number 95-566, Montana v. James Allen Egelhoff.

Ann Celestine German:

Mr. Chief Justice, and may it please the Court:

The question before us is whether there was a rape or not, and you can prove it a lot of ways, but we’re not going to let this prior history come in, and it’s the same thing with this drunkenness statute, it seems to me.

William H. Rehnquist:

General, is it Mazurek?

Ann Celestine German:

The Montana supreme court has authoritatively construed the Montana law in this case.

The question before is whether it was knowing, and we’re not going to let the prior history of drinking the booze come into the question.

Joseph P. Mazurek:

Mazurek, Mr. Chief Justice.

Ann Celestine German:

This instruction prevented the consideration by the jury, as it decided whether or not there was reasonable doubt as to James Egelhoff’s acting purposely or knowingly, of evidence that, as a matter of State law, negated those elements.

–Let me draw an example.

William H. Rehnquist:

Mazurek.

Ann Celestine German:

The jury’s task is to ascertain the truth.

If one of the elements of the crime of rape were the past sexual conduct of the rape victim, then I don’t know that the rape shield law could stand constitutional challenge.

William H. Rehnquist:

General Mazurek, you may proceed whenever you wish.

Ann Celestine German:

It cannot do that if relevant evidence going to the proof of an element of the charged offense is excluded from the deliberations of the jury, the considerations by the jury during its deliberations.

The rape shield law withstands constitutional challenge because there’s no… it’s not caused… there’s no causal nexus between the rape victim’s prior conduct–

Joseph P. Mazurek:

Mr. Chief Justice, and may it please the Court:

Ms. German–

Right.

Joseph P. Mazurek:

Few matters are so troubling to modern society as the vexing correlation between intoxication and criminal behavior.

–Ms. German, don’t we always… I mean, there are lots of… there’s lots of relevant evidence that is excluded traditionally at common law.

Ann Celestine German:

–And this man’s intent.

Joseph P. Mazurek:

At common law, a person who committed a violent act could not rely on his voluntarily intoxicated condition to exculpate his conduct.

There are all sorts of privileges, husband-wife privilege, a priest-penitent privilege, evidence will be excluded that is totally relevant but too inflammatory, evidence may be excluded because it’s unlawfully obtained… I don’t know how we can say, as a general matter, that it’s unconstitutional to exclude relevant evidence.

But drunkenness isn’t an element of the crime here, any more than–

Joseph P. Mazurek:

In 1987, the Montana legislature, exercising the power traditionally left to the States to prevent and deal with crime, returned to that common law tradition.

Ann Celestine German:

Yes, I agree with you.

Right, and what was excluded here from consideration by the jury was not that the man drank 8 hours before, it was at the time that the offenses were committed his blood alcohol level was.36.

Joseph P. Mazurek:

It changed its substantive criminal law by enacting a statute which precludes a defendant in a criminal case from relying upon evidence of his own voluntary intoxication from escaping personal responsibility for his actions which ensued.

Ann Celestine German:

The Montana supreme court in its decision in Egelhoff did not find Montana Rule 403, the rule of evidence that allows the court to exclude otherwise relevant evidence, did not find that rule unconstitutional.

And I wanted to respond to something that Justice Souter said, because I think this is important.

Did the supreme court of Montana agree with you that the substantive law had been changed?

Ann Celestine German:

That rule continues in effect.

Justice Souter hypothesized in the petitioner’s case a statute that said that you could punish someone for being drunk other than driving a… for committing a homicide other than when driving a car to preserve the negligent homicide case.

Joseph P. Mazurek:

Mr. Chief Justice, the supreme court of Montana did not address that issue.

Ann Celestine German:

Otherwise relevant evidence can be excluded because it’s not probative, it’s confusing, it’s misleading, et cetera.

In fact, what this statute has done in Montana is eliminate the negligent homicide, because if you go in and you try to prove drunken vehicular homicide in Montana, and this statute is allowed… this instruction is given to the jury, the jury can’t consider it.

Joseph P. Mazurek:

The supreme… that issue was raised by the State in its supplemental brief to the supreme court.

Ann Celestine German:

In this–

They have to bring hack a deliberate homicide verdict.

Joseph P. Mazurek:

The supreme court’s analysis skipped over the fact that the legislature had passed the statute, or changed the statute from its former provision, did not analyze the… or interpret the statute, rather, proceeded directly to the due process analysis.

Or there’s a policy against admitting it–

Ann Celestine German:

They can’t consider intoxication to determine whether or not the person in fact was negligent, which is an objective mental state, as compared to purposeful or knowing, which is the subjective mental state.

Well, I thought the supreme court of Montana found that under the statute the defendant had to be proven to have acted knowingly and purposely.

Ann Celestine German:

–A policy–

–Which suggests that in fact the State really cannot get the results that it’s trying to get here except by doing what it’s doing.

Joseph P. Mazurek:

Justice O’Connor, that’s true, the statute requires the defendant… requires the State to prove beyond a reasonable doubt that the defendant acted purposely and knowingly–

–Such as–

Ann Celestine German:

No, which suggests that the State has to be very careful about the way it defines the element of offenses.

And the supreme court so indicated, did it not–

Ann Celestine German:

–Yes.

Let me ask you this.

Joseph P. Mazurek:

–Yes, and the State–

–Such as the priest-penitent privilege or the husband-wife privilege.

We have been assuming… I think most of our questions and most of the answers have been assuming that if there is something irrational about what’s going on it’s because the fact of the intoxication goes to the existence or nonexistence of the purpose or the awareness, and we’ve sort of left our analysis there.

–in its opinion?

Ann Celestine German:

Yes.

Isn’t the policy of the statute based on something different, and that difference is, two people, one drunk, one sober can be aware, but one is not inhibited in his action, the drunk one, the sober one is, and the State is saying that the lack of inhibition as a result of voluntary intoxication should not be an excuse.

Joseph P. Mazurek:

–Excuse me, Your Honor?

Ann Celestine German:

The Montana supreme court in construing that this evidence was relevant to this particular charge of deliberate homicide made an initial determination that the elements of this crime are purpose and knowledge subject mental state elements.

That is not irrational in the sense of going to the proof of awareness or purpose, and it is rational in saying there are certain acts which remove the capacity to inhibit behavior, and they should not be taken as an excuse.

In its opinion.

Ann Celestine German:

That was their first step.

Isn’t that the justification?

Joseph P. Mazurek:

The State supreme court indicated in its opinion that it went beyond… went… skipped over the analysis of the statute and held that the defendant was… essentially the State’s burden was lessened, which… with which we disagree, or that the defendant was deprived of the right to introduce all relevant evidence.

Ann Celestine German:

The second step was that given that those are the elements, intoxication is relevant, legally relevant because it tends to prove a fact, the probability of the existence of a fact that would go to the ultimate determination.

Well, it’s a justification, but I want to go back to how you framed your hypothesis, or your analysis.

Joseph P. Mazurek:

Both of those determinations were based on Federal constitutional principles.

Right.

Ann Celestine German:

You started out by saying you have two people who are aware, one who’s drunk and one who’s sober.

Well, do you agree that under the statute the State must prove beyond a reasonable doubt that the defendant acted knowingly and purposely?

Ann Celestine German:

So you can… you could affirm the Montana supreme court without saying that–

In fact, if–

Joseph P. Mazurek:

Yes, Your Honor, we do agree, and we agree–

Well, that doesn’t get you home.

Well, the State has to prove that.

And if there were evidence that the defendant at the time of the alleged crime had passed out from voluntary intoxication, under the statute that evidence could not be brought in by the defense.

You could say the same two things in all the other instances I’ve just told you.

Ann Celestine German:

–the person is not aware.

Joseph P. Mazurek:

–The evidence of… that the defendant was passed out, was asleep, would be admissible for that purpose.

Ann Celestine German:

–I–

The State has to prove that.

Joseph P. Mazurek:

It would not be admissible for determining his mental state, whether he acted purposely or knowingly as the example in the respondent’s amicus brief suggests.

It is… you know, it is relevant, logically relevant to the point that must be proved.

Ann Celestine German:

Mm-hmm.

It wouldn’t go to that, you think?

Nonetheless, we say in many instances, nonetheless we will not allow it in.

So I think I may assume that hypothesis.

Joseph P. Mazurek:

It… to the mental state element, Your Honor?

So you can’t say that automatically that establishes a constitutional violation.

If the person is, in one example, blind drunk on the floor, the State isn’t going to be able to prove it, but in the State has proven it–

Sure.

There has to be something else to your case like, for example, we’ve never, you know, traditionally excluded evidence of this sort, that only… States can only exclude relevant evidence in situations where States have traditionally done it in our common law system, but on that point it seems to me the history is against you, that in fact, drunkenness did not used to be allowed as mitigating the offense.

Ann Celestine German:

Why not?

Joseph P. Mazurek:

No, it would not.

Ann Celestine German:

–I don’t disagree with what you’re saying.

–Pardon me?

Joseph P. Mazurek:

It would go more likely to… it would… the fact that the defendant was unconscious would tend to show that he would… may have been physically unable to commit the act.

Ann Celestine German:

What… our point is that part of what the Montana supreme court did here was it not only construed the statute of deliberate homicide with respect to what the elements were, it also construed what is legally relevant to those elements in this particular case.

I mean… excuse me.

Joseph P. Mazurek:

In fact, that’s what this defendant raised the issue of voluntary intoxication for, to say–

Ann Celestine German:

It held that under Montana law intoxication evidence is legally relevant to the proof of knowledge or purpose.

I… your time has expired, Ms.–

Well, what about insanity in Montana?

Ann Celestine German:

The confusion arises where you get into the history of the use of intoxication over the last 200 years, which would be a different case.

General Mazurek, you have 4 minutes remaining.

Can a defendant bring in evidence to show that his mental condition was such that he couldn’t have acted purposely?

Ann Celestine German:

The Montana supreme court didn’t look at that in determining that Montana State law relevance is that this evidence is relevant.

Joseph P. Mazurek:

Thank you, Mr. Chief Justice.

–Yes, Your Honor.

Well, leaving history aside, didn’t the Montana supreme court say on the hypotheses… the hypothesis that you have just put before us that for reasons of Federal constitutional law, there is something illegitimate about a State policy that says, we are going to exclude what would otherwise be legally relevant evidence, and what is, in fact, factually relevant evidence because we have a policy of discouraging drunkenness, and of… we have a policy that refuses to allow individuals to exculpate their conduct because of intoxication?

Joseph P. Mazurek:

I would like to make two points, if I might.

Under Montana law a defendant can… we do not call it insanity.

Didn’t Montana say, for reasons of Federal constitutional law, that is an illegitimate and unconstitutional policy?

Joseph P. Mazurek:

First, I want to clarify and ensure that the Court understands that Montana… and I may have given this impression in response to Justice Souter, that we may have… we have not backed away from our position that the statute which is in question here, we believe, and espouse in our brief that it has conditioned the elements of purpose and knowledge.

We call it mental disease or defect.

Ann Celestine German:

Yes, and it–

Joseph P. Mazurek:

It has taken voluntary intoxication out of that consideration for valid public policy reasons.

A defendant may negate the purposely or knowingly element by proof of mental disease or defect, but that is a much different situation than what we have here.

All right.

Joseph P. Mazurek:

What I… Justice Souter, in my response to your question, I was attempting to say that a State could enact such a statute.

There was strong–

Why is–

Joseph P. Mazurek:

We do not believe that is what we have done here.

How about involuntary intoxication?

Ann Celestine German:

–What I–

Joseph P. Mazurek:

It’s not the effect of what we have done here.

Joseph P. Mazurek:

–support for that tradition–

–Why is, then… address the question why they were right.

Joseph P. Mazurek:

Rather, we have conditioned purpose, the definitions of purpose and knowledge, and we believe that, having done that, we have offended no principle enunciated in the Constitution.

How about involuntary intoxication, someone put a Mickey in his drink?

Why is it, in fact, unconstitutional to say exculpation because of intoxication is illegitimate, but the preservation, let’s say, of the… of marital privacy on the husband and wife privilege is perfectly legitimate?

Joseph P. Mazurek:

It is rational.

–No, Your… Justice Stevens, we believe that’s clearly excluded under the statute, because it would not involve knowing consumption of the alcohol.

Ann Celestine German:

–The Montana supreme court’s interpretation of this Court’s precedent on due process gave rise to their conclusion that when you have an essential element of a crime, in this case purpose or knowledge, the jury… the defendant is entitled to have a jury find that beyond a reasonable doubt.

Joseph P. Mazurek:

It does not shift the burden of proof.

In other words, he could rely on such evidence?

Ann Celestine German:

When you exclude that evidence that is legally relevant, you have undermined that due process right that this Court has enunciated.

Mr. Mazurek, I was curious about one thing in Montana.

Joseph P. Mazurek:

He could rely on such evidence to show that he did not knowingly introduce the alcohol, and that would excuse his conduct, yes.

Ann Celestine German:

With respect to the marital privilege–

How do they treat being high on drugs as distinguished from alcohol?

Joseph P. Mazurek:

But if I may–

All right, you’ve done it on the marital privilege case, you’ve done it on the Fourth Amendment case, I suppose, although in that instance it’s working against the Government so that you say there’s no constitutional problem–

Joseph P. Mazurek:

Justice Ginsburg, being high on drugs would have the same effect.

So intoxication can be relevant to whether an act is done knowingly and purposefully?

Ann Celestine German:

–I’m not sure that I know how to answer the question with respect to marital privilege on this particular set of facts, because what the Montana supreme court did here was very, very narrow.

Joseph P. Mazurek:

This statute applies to the knowing ingestion of any intoxicating substance.

–Your Honor, Justice Kennedy, where the intoxication is voluntary, no, it cannot.

Ann Celestine German:

They said, in this case, where a man who is.36 blood alcohol is charged with a crime that requires proof by the State of subjective mental state, intoxication is relevant, and to exclude it–

So it includes–

Joseph P. Mazurek:

We do not believe it is relevant–

–The opinion of the supreme court of Montana was considerably broader than you’re saying.

Joseph P. Mazurek:

If there are no further questions, Mr Chief Justice, I’ll conclude my remarks.

Well–

I mean, it didn’t depend on the fact that the man had.36 blood alcohol.

William H. Rehnquist:

Thank you, General Mazurek.

Joseph P. Mazurek:

–to the issue of mental state, and that is based–

Ann Celestine German:

–Well, no, and in fact the opinion, if it’s affirmed, would have the effect of overturning that statute, the part of the statute that was amended in 1987, but how they arrive at their conclusion was based on the specific facts of this case, and the court… I could… well, I don’t want to take the time to find it, but the court in their opinion specifically said, here we have a man who is.36, the jury wasn’t entitled to consider it.

William H. Rehnquist:

The case is submitted.

–Well, let’s just focus on mental state for a moment.

Ann Celestine German:

And I want to point something out.

Intoxication can be relevant to the determination of mental state if we’re interested in what that mental state was.

Ann Celestine German:

This evidence was not excluded from the jury.

Joseph P. Mazurek:

–Your Honor–

Ann Celestine German:

This evidence was brought in by the State.

Montana itself says that, because involuntary intoxication is deemed sufficiently important so that the jury can consider it.

Ann Celestine German:

It was introduced by the State at the beginning of the trial in their opening statement, the evidence was collected, they produced the evidence of it, they proved to the jury that he was.33 blood alcohol, they proved that he was a violent drunk, and then at the end of the trial they said to the jury, now, with respect to that intoxication evidence, put a sack on your head, go in the jury room, and don’t consider it, but yet you’ve got to determine whether or not he acted purposely, which requires subjective mental state–

Joseph P. Mazurek:

–But Your Honor, what we’re… the distinction we’re drawing here is where the intoxication is involuntary the legislature in the exercise of its prerogative and in… consistent with common law principles has determined that a person ought not to be able to exculpate himself from his conduct undertaken after he has voluntarily ingested the intoxicating substance.

But didn’t defendant… didn’t defendant himself ask to have that considered, because wasn’t his defense, I didn’t do it, some fourth person did it–

But if it’s involuntary the legislature has recognized that that can bear on the formation of the requisite criminal intent.

Ann Celestine German:

–Yes.

Joseph P. Mazurek:

it could be a factor, Your Honor.

–so I want everybody to know I was dead drunk, I was in a drunken stupor?

Well, your point really is that the legislature has said that in… purposeful and so forth, you have to prove that, except that the defendant may not show that whatever lack of purposefulness he had resulted from voluntary consumption of liquor.

So it was not just the State that was saying, this is a bad guy, he got intoxicated.

Joseph P. Mazurek:

That’s correct, Your Honor, and it goes to case–

Defendant himself wanted the jury to believe that he was so drunk he didn’t do it, so the evidence was there to help the defendant make that–

But you don’t deny that it’s logically relevant.

Ann Celestine German:

Yes.

Joseph P. Mazurek:

–It–

–part of his case–

Or do you?

Ann Celestine German:

Yes, but had the State not introduced it in their own case-in-chief, I think the situation might have been a little different.

Joseph P. Mazurek:

–No.

Ann Celestine German:

One of the things that happened–

I mean, you seem to be trying to deny it’s logically relevant.

–But nothing would have impeded the defendant from making that defense and saying, I didn’t do it because I was stone drunk, I was out, and introducing that evidence.

Joseph P. Mazurek:

No.

Nothing in the statute, nothing in Montana law would preclude that.

Joseph P. Mazurek:

No, we’re–

Ann Celestine German:

–No, and the statute that existed prior to 1985, or to ’87, was not a mandatory statute.

The man is so drunk he thinks he’s shooting an pink elephant, and he’s shooting a human being.

Ann Celestine German:

It didn’t say the jury must consider intoxication.

Now–

Ann Celestine German:

It said that the jury may consider intoxication.

Joseph P. Mazurek:

–It–

Ann Celestine German:

What happened in ’87 is the jury was precluded from considering it for any purpose, so when we get into Egelhoff, certainly we could have presented and we did present the evidence to prove that he was physically incapable of acting, but the State introduced it to prove that he was a violent drunk who killed with no motive.

–surely that’s logically relevant–

Well, the answer, I thought in my own mind, to the question that Justice Scalia and others were asking, we always exclude a lot of evidence.

Joseph P. Mazurek:

–We concede that–

Why is this any different?

–to whether he’s… okay.

It would have to be, what’s the reason that you want to exclude this evidence, and I take it the reason they want to exclude this evidence is because they want to convict people who voluntarily get blind drunk of first degree murder.

Joseph P. Mazurek:

–Excuse me, Justice Scalia.

So what’s wrong with that as a reason?

Joseph P. Mazurek:

Yes, we do agree that it could be logically relevant, and that’s the very point of our argument.

That’s their reason for excluding the evidence.

Joseph P. Mazurek:

It’s the distinction that the State of Montana in the exercise of the authority traditionally left to the States to define and deal with crime to make the decision under… which we think is allowed under the Due Process Clause, and that’s why the Montana supreme court’s decision is wrong.

they want to convict the person who voluntarily gets blind drunk.

Joseph P. Mazurek:

We have made the evidence legally irrelevant, and have done so by express enactment of the legislature, and that is consistent with the common law tradition.

Now, to my suggestion that that’s irrational to convict the person where the circumstances, absent the drunkenness, lead to an inference of purpose, compared with the situation where the circumstances absent the drunkenness lead to an inference of negligence, the reply was, well, that’s the way they want to do it, and what’s wrong with that?

Joseph P. Mazurek:

It’s based on sound reasons of public policy.

So that’s the question I’m asking.

Well, the legislature perhaps could have written a law to say that a person who acts while voluntarily intoxicated has the mental state required for a conviction of a certain offense.

What’s wrong with that?

They could have written it that way–

Missouri wants to convict people who… Montana, sorry.

Joseph P. Mazurek:

We agree–

Excuse me.

–but didn’t.

Anyway–

Joseph P. Mazurek:

–They did not, Justice O’Connor.

Ann Celestine German:

Well, what’s wrong with it is not that they can’t do that.

Instead, they left a statute in place that said the State has to prove knowing and purposeful.

Ann Celestine German:

They can’t do it this way.

Joseph P. Mazurek:

That’s… yes, Your Honor, that’s correct.

Ann Celestine German:

If they want to do it they can… the Montana legislature has the capacity to pass a statute that specifically says, there is a crime known as intoxicated homicide, and for that crime we are not going to require a subjective mental–

Joseph P. Mazurek:

We… but it’s important that… the State does not shy from its burden in this instance of proving beyond a reasonable doubt, as we believe the evidence showed in this case, that this defendant acted with purpose or knowledge.

–But that is not what the effect of this statute is, because this statute does convict people of first degree murder if, blind drunk, they run into a pedestrian at noon, because the jury will infer purpose, but does not convict them of first degree murder if, blind drunk, they run into somebody at 3:00 in the morning going 100 miles an hour, because absent drunkenness the jury will infer negligence, so those cases are treated differently.

Joseph P. Mazurek:

As in any other criminal case, that determination will be made by the totality of the circumstances surrounding the commission of the crime, and even though a person–

Maybe it’s irrational, maybe it isn’t, but I want to be clear about what I think they’re saying the justification is, and now that’s what I want you to reply to.

And the condition of his mental state by virtue of alcoholism is… or the alcohol he had consumed is, you admit, logically relevant?

What’s wrong with their justification?

Joseph P. Mazurek:

–Yes.

Ann Celestine German:

–Well, I’m not… again, I can’t get away from this.

Joseph P. Mazurek:

It may be logically relevant–

Ann Celestine German:

The Montana supreme court has interpreted the statute that is… that Mr. Egelhoff was charged with here as requiring proof of the specific mental states, and you can’t do that if you don’t allow the evidence of intoxication to come in for the jury to consider it.

Is there any–

Ann Celestine German:

The jury does not have all of the relevant evidence that they need, and in the Montana supreme court’s interpretation of its own statutes, this Court, as I understand it, is bound by that interpretation.

Joseph P. Mazurek:

–but it is not legally relevant.

Ms. German, do I understand that the argument you’re making is, the State could make this conduct as the same degree of culpability as now, so this case is about form, that it didn’t do it in the right form, but they could accomplish exactly the same result through another statute, or are you saying if somebody was drunk the jury has got to be told that because it always goes to culpability?

–Is there any due process requirement, do you think, in any criminal case that a defendant has a right to produce evidence that is relevant in his defense?

Are we dealing with pure form, or is there some substance at stake?

Joseph P. Mazurek:

We would… we don’t believe that there is as broad a right to introduce all relevant evidence as the Montana supreme court suggests.

Ann Celestine German:

Well, it’s not pure form, and I guess in response to your first… the first proposition, there is nothing in the Montana supreme court’s opinion here that prohibit’s the jury, or the legislature from doing what you suggest.

Joseph P. Mazurek:

I think this Court has looked at… the cases on which the State court relied and on which respondent relies, such as Chambers and Crane, in those instances, the evidence being offered by the defendant was, in fact, exculpatory under State law.

Ann Celestine German:

Now, they could write a statute that results in a serious penalty being imposed on a person who commits a crime when drunk without proof of any other mental state.

Joseph P. Mazurek:

The circumstances surrounding a confession, or procedural rules, were deemed arbitrary in the Chambers case to… and prevented the defendant from bringing in evidence that another individual had confessed to those crimes.

Then why isn’t it pure form?

Joseph P. Mazurek:

In those instances, the evidence which was sought to be introduced was legally relevant under State law by the State’s… legislature’s determination it is not legally relevant in Montana, and that is consistent with the common law traditions, and based on valid public policy reasons the correlation between–

Ann Celestine German:

Because in… as has been recited by this Court in fairly recent decisions, even when a case exists where a person is absolutely guilty… I mean, the proof beyond them is overwhelming, we do not allow the judge to direct a verdict.

Well, I mean, you couldn’t say, you’re guilty of robbery and the prosecution can present its case but it’s legally irrelevant to hear from the defendant.

Ann Celestine German:

I mean, what we’re doing is we’re saying the jury is the one who’s going to make the–

You couldn’t say that.

No, I think you’ve answered my–

Joseph P. Mazurek:

–We could not.

–They couldn’t get–

All right.

–Yes.

So here what you’ve said is, it’s legally necessary to prove the person did have purpose or intent, and here is some evidence that will prove to the contrary but it’s legally irrelevant, i.e., you won’t let him present the evidence that is highly likely to prove to the contrary, so what’s the justification for that?

–this result, this precise result in any other way, really, could they?

Joseph P. Mazurek:

The justification, Your Honor, for that position is first and foremost the tradition of the common law, which denied any exculpatory value and, in fact, there is some evidence that intoxication was considered an aggravating factor.

Ann Celestine German:

–No, and you know, I want to point something out here that I think happens, and this is of interest to me because I’m a trial lawyer.

Joseph P. Mazurek:

And the example I guess I would give in this case is the facts that… on which purpose and knowledge could have been inferred by the jury; the fact that Mr. Egelhoff, with his own pistol, which had previously been in the glove compartment, placed two well-placed shots from a pistol into the heads of the two victims, he attempted to evade detection after… twice.

Ann Celestine German:

You have two jurors in this jury room.

Joseph P. Mazurek:

Once, a physician who was attempting to provide assistance, he spoke with the… the physician was so scared he left the scene.

Ann Celestine German:

They’ve both taken an oath to follow the instructions.

Joseph P. Mazurek:

At the hospital he kicked a camera from a… very deliberately kicked a camera out of the defendant’s… or, excuse me, a detective’s hands.

Ann Celestine German:

One of them says, I believe that this man did not know what he was doing.

Joseph P. Mazurek:

All of that would… or, those are logical to show that this defendant acted with purpose or knowledge, again directing the Court to the State’s definition of those… of purposely and knowingly.

Ann Celestine German:

The lowest form of mental state… and I wanted to correct Justice O’Connor on that.

Joseph P. Mazurek:

He must be aware of his conduct or aware that there exists a high probability.

Ann Celestine German:

We don’t have to prove purpose and knowledge in Montana, only purpose or knowledge, and knowledge is a very low standard.

Joseph P. Mazurek:

All of the facts in this would tend to indicate that this was a deliberate shooting of these two people, a person who, even though he may have been intoxicated, and we don’t know–

Ann Celestine German:

It just means awareness.

But the supreme court of Montana based its decision not on lack of evidence, as I understand it, but on the instruction it was given.

Ann Celestine German:

So there’s someone in the jury room saying, I don’t think this man was aware, and… because he was drunk.

Joseph P. Mazurek:

–Mr. Chief Justice, there is a comment in the decision that the instruction may… might have… a jury may have been misled into believing that the State’s burden had been reduced.

Ann Celestine German:

Another juror said, I’ve taken an oath to follow these instructions, and this instruction said, I can’t take intoxication into account.

Joseph P. Mazurek:

We don’t think the State… the State’s burden was not reduced.

Ann Celestine German:

They’re both right, and they are mutually contradictory to one another.

Joseph P. Mazurek:

It still had the burden to prove beyond a reasonable doubt that this defendant acted purposefully and knowingly.

Well, why are they both right?

But the jury was told it couldn’t consider evidence of respondent’s voluntary intoxication.

One is following instructions, and the other isn’t.

Joseph P. Mazurek:

That’s right, Your Honor, and again for the very valid and historical reasons we have offered in support of that conclusion by the State legislature.

Ann Celestine German:

Yes.

Is it–

Ann Celestine German:

One is following the instruction that says I cannot take intoxication into account when determining the mental state, the other one’s saying, I don’t think he was aware.

–General Mazurek, the argument, or suggestion at least is made by the people on the other side that you could accomplish what you want to accomplish without skirting, if not confronting some of these constitutional problems if the State had simply passed a statute saying, anybody who is intoxicated and who kills another human being is guilty of first degree murder.

Well, don’t we read the instructions as a whole, and isn’t it clear from the instruction that it may not be taken into account for that purpose?

Or they could have said, anyone who does it except while driving a car, to preserve the negligent homicide case, but it could have made intoxication plus causing death a crime.

Ann Celestine German:

That’s right.

The suggestion is, no problem.

One juror is following the instructions and the other juror isn’t.

Why shouldn’t the State do that and, if you know, why didn’t the State do that?

Ann Celestine German:

Well, the other juror, the one who’s saying I’m following the instruction that says we can’t take it into account, may very well not believe he was aware, so what you’re doing is undermining the truth of the verdict.

Joseph P. Mazurek:

The State… the State made this choice I think consciously in this respect: the statute–

Ann Celestine German:

He may not believe… I don’t believe he was aware, but I can’t take that–

Well, why did it… in other words… you know, if you were saying… you are saying to us that the statute uses knowingly and purposely in its usual legal sense.

Well, I think you’ve made an argument for… perhaps for jury difficulty in following the instruction.

You’re not saying, well, there’s a special meaning to it because it’s… it is modified by the fact that you cannot negate it by intoxication.

Ann Celestine German:

–Mm-hmm.

You’re not saying that.

But I don’t think you’ve made an argument to the effect that the two jurors can each follow the instruction and come out differently as in your example.

You’re saying, it means… those two terms mean what they normally mean, the Model Penal Code and the definition of the statute, and so on.

Actually, the juror could say, I don’t believe he was aware because he was drunk.

And so that creates a difficulty for you, because it certainly is, in fact, relevant to those two states of mind whether someone is intoxicated or not, whereas if you were to have a statute that says, look, voluntary intoxication, plus causation, is a crime.

That… the juror could say that and be following the instructions so long as the reason… the reason he thinks he wasn’t aware is something more than simply knowing he had drunk three bottles of bourbon immediately before the event.

Then you wouldn’t have that problem.

There has to be some external evidence that he was not aware, and the jury… the juror could see that external evidence, let’s say a videotape, and say, he wasn’t aware.

Why don’t you do it that way?

Ann Celestine German:

Right.

Joseph P. Mazurek:

–Your Honor, the… I… the legislature, perhaps as a matter of convenience, took a statute which provided just the opposite, a statute which is codified in the General Criminal Code section under other provisions relating to personal–

Now, the reason I think he wasn’t aware is I think he was drunk, but it’s some evidence other than the mere evidence of the drunkenness that convinces the juror of that unawareness.

Well, I know that’s what they–

That doesn’t seem to me terribly irrational.

Joseph P. Mazurek:

–or individual responsibility.

Ann Celestine German:

Well, what I’m suggesting, I’m suggesting the scenario where that isn’t there.

–That’s what they did.

Ann Celestine German:

There isn’t that other evidence.

Let me–

Ann Celestine German:

We don’t have a videctape.

Joseph P. Mazurek:

But–

Ann Celestine German:

We’ve got Mr. Egelhoff out there in the middle of the night, in the middle of nowhere, in the dark, and no one sees a thing.

–Why?

Okay.

Joseph P. Mazurek:

–Because they wanted to reverse the… what had been the treatment under the Model Penal Code but–

Ann Celestine German:

So the only evidence they have of mental state is entirely circumstantial based on what happened after the fact.

Let me ask you–

Ann Celestine German:

So they’re sitting there and they’re going, well, boy, we just don’t think he was aware, given the fact that he was found to be unconscious… the first people on the scene found him to be unconscious, et cetera.

Joseph P. Mazurek:

–but then the defendant was allowed to–

Ann Celestine German:

That evidence is in the record.

–General–

But the burden’s on the State to prove awareness.

–I understand that, but–

Ann Celestine German:

That’s right.

–Do you agree that the statute described would produce the same result as the statute here, the statute that said anyone who, when intoxicated, knowingly kills a human being is guilty of murder?

So there has to be some evidence of awareness, I assume.

Joseph P. Mazurek:

–Justice Scalia–

Ann Celestine German:

Well, the evidence of awareness I’m sure in this case was the State’s contention that he pulled the trigger.

I don’t think it will produce the same–

Ann Celestine German:

You wouldn’t do that when you’re unaware, I guess, asleep, but–

Joseph P. Mazurek:

–I believe that he left out the term knowingly.

But there wasn’t a whole series of things that were recited in the brief, taking the gun out of the glove compartment–

Joseph P. Mazurek:

It would produce a strict liability–

Ann Celestine German:

–Exactly, and–

–Sure I left out knowingly, because your problem is in having knowingly and not allowing relevant evidence to determine whether it was knowing or not.

–aiming squarely–

But let me ask you the same question Justice Scalia has.

Ann Celestine German:

–Yes.

Do you agree that the State could have done what your opponent suggests you could have done?

–not using any… doing it very efficiently.

Do you agree that you had that alternative?

Ann Celestine German:

Everything that the State has recited in their brief, and the Montana supreme court in fact recited in its opinion, go to show that the State had ample evidence.

Joseph P. Mazurek:

–Yes, we do, Your Honor.

Ann Celestine German:

They didn’t need this instruction.

Joseph P. Mazurek:

We believe that, believe the respondent concedes that, that the State could have done that.

Ann Celestine German:

They could still go to the jury and say, hey, we… you know, you can take intoxication into account here, or we don’t give an instruction at all with respect to it.

Joseph P. Mazurek:

I don’t think it’s required to do that.

Ann Celestine German:

We’ve got evidence that he committed this crime.

I want to know whether you concede it, too.

Ann Celestine German:

Based… you know, go ahead and take into account all of the evidence.

The State could have done that?

Ann Celestine German:

Don’t exclude any, you know–

Joseph P. Mazurek:

Yes, could have.

Certainly if you’re a Montana trial judge and this is on the books, and you’re asked to give… you give that instruction, don’t you?

I wish you would describe to me how, because I don’t concede it.

You don’t say, well, you… to the State, well, you’ve got plenty of evidence, so much evidence you don’t have to worry about the jury considering evidence that the statute says you couldn’t consider.

I don’t understand how the State could have gotten precisely this result in any other way.

Ann Celestine German:

–I don’t know that that’s true, Mr. Chief Justice.

Joseph P. Mazurek:

Well, we–

Ann Celestine German:

I think that in this case not giving that instruction… we objected to the giving of the instruction on a couple of grounds, one of… the one that we’re here today, that it wasn’t the State’s burden to prove the mental state beyond a reasonable doubt.

To still require knowingly… to still require knowing, and yet not allow evidence of intoxication to be used with respect to the knowing.

Ann Celestine German:

Not giving the instruction doesn’t direct the jury one way or the other and, for instance, in the Fisher case that was cited by the Solicitor General in their brief, that’s what happened.

That’s a quite different disposition from anything else that could have been crafted.

Ann Celestine German:

It was the failure to give an instruction, rather than the giving of instruction that was the complaint.

Joseph P. Mazurek:

–Your Honor, it is, and the legislature made that conscious choice and, in fact, it still makes the evidence available to show that the defendant did not commit the act or, as this defendant did, that–

Ann Celestine German:

If you get to the end of your case as the State and you feel that you’ve proved purpose or knowledge, and again, it’s a very low standard in Montana, awareness, awareness of your conduct, awareness that your conduct has a result, you don’t need this further instruction to the jury saying you can’t take voluntary intoxication into account.

Mr. Mazurek, do I understand the legislation right, that the only change from the way it was was the insertion of the word not?

Well, it’s… if it’s a very debatable instruction you might not ask for it, but it seems to me when you have a statute on the books that says, this is… the jury may not consider this, the State would normally certainly ask for it.

Basically, that was the change.

Ann Celestine German:

Well, it happened in this case.

Joseph P. Mazurek:

–In effect, Your Honor, it was to… Justice Ginsburg, it was to switch what had been a provision which allowed complete exculpation if intoxication was used to negate the mental state to a situation where the person could not escape culpability–

Yes.

Well, I–

Ann Celestine German:

I don’t know of very many others, and I would like to point out that the instances in Montana, for 100 years, Montana allowed the evidence of intoxication on the issue of mental state, and there is not… there are no reported cases, or there were no evidence of any case of a person who was acquitted because of it.

Joseph P. Mazurek:

–but could still use the evidence for other purposes.

Suppose the State prohibits the commission of an act that is reckless, where the actor is aware of the risk, and then it has a further statute that says drunkenness does not negate recklessness, would that be constitutional?

Joseph P. Mazurek:

And again, I come back to the notion that the fact that the State made it the way it did in this omnibus manner, by making it apply across the board to all crimes, that that is a valid exercise of the State’s power.

Ann Celestine German:

Well, that’s the Model Penal Code formulation.

Joseph P. Mazurek:

I’d like to reserve the remainder of my time.

That’s one reason I asked.

–Thank you, General Mazurek.

Ann Celestine German:

Yes, and we don’t have that in Montana.

Mr. Estrada.

I’m asking, suppose you did?

Mr. Estrada, I don’t want to spoil your order, but sometime in the course of your argument would you address the question that Justice Scalia and I were posing to General Mazurek?

Ann Celestine German:

Yes.

Miguel A. Estrada:

Yes.

Ann Celestine German:

The Model Penal Code formulation was concededly arbitrary.

It doesn’t have to be now, but–

Ann Celestine German:

However, I would point out that I think that at some point evidence of intoxication when you’re charging an objective mental state… and I think your question posited a subjective mental state.

Miguel A. Estrada:

Justice Souter, the answer is on page 2 of the reply brief of the State, filed by the State.

You must be… the actor must be aware of the risk.

Miguel A. Estrada:

I don’t think that the General had an opportunity to get back to your question, but the answer is that it is a changed purpose concept.

Ann Celestine German:

Okay.

Miguel A. Estrada:

It is not the ordinary purpose as one would think–

Ann Celestine German:

I think again when you’ve got an awareness question that the jury has to find that evidence of intoxication might very well be required to be allowed in that case, but it would be unconstitutional–

–Well, that’s what I thought the argument was, and then I thought the State was in fact… I thought the State had clearly jettisoned that argument.

I think you have to answer that, and I… that way, and that means that under your formulation I think the Model Penal Code is also unconstitutional, and I’m quite troubled by that.

Miguel A. Estrada:

–No.

It seems to me that what the State is saying here is that in most cases the jury can find awareness, knowledge, conscious purpose, quite without regard to drunkenness, and that we don’t want drunkenness to intervene as an excuse, and it seems to me that that’s a plausible and a permissible and a rational theory.

Miguel A. Estrada:

As I read their reply brief–

Ann Celestine German:

–Sure, and I would point out here that the Montana supreme court’s interpretation of–

Well, I just mean in the argument here.

But if you say sure, then if you agree with that, then you lose, don’t you?

I didn’t think that was the position the State was taking.

Ann Celestine German:

–Well, what I was going to want to say is that what the Montana supreme court said here was that it’s not an excuse.

Miguel A. Estrada:

–As I understood the argument here, I didn’t think that the General got to get back to that question because he was answering the other part of your question, but I don’t understand them–

Ann Celestine German:

They said the word excuse, i.e., defense, is not what we’re doing.